- Remember the California drug statutes are broader than generic drug trafficking, both because they include controlled substances the federal statutes don’t include and because some of them, until recently, included non-trafficking conduct.
- There are also viable arguments the California drug statutes don’t require jury unanimity on the type of controlled substance and don’t require jury unanimity on the conduct, which would make the statutes non-divisible.
- The Ninth Circuit has rejected the argument that the list of controlled substances makes the statutes non-divisible, but in a recent case, it expressly deferred deciding whether the list of forms of conduct makes the statutes non-divisible.
NOW THE BLOG:
Several times over the last few years I’ve put up posts about how the California drug statutes are broader than generic federal drug trafficking in a couple of respects. First, most of the drug statutes are broader because they include controlled substances that aren’t included in the federal controlled substance schedules. Second, the sales/distribution statutes are broader than guidelines drug trafficking provisions – like those in the illegal reentry guideline, felon in possession guideline, and career offender guideline – because, until the statutes were amended in 2013, they included multiple other forms of conduct, and one of those forms of conduct was transportation for personal use. (See “Still More on Descamps: An Application of Last Week’s Post” in the September 2013 link at the right, “Another Descamps Angle on a California Drug Statute” in the May 2014 link at the right, and “Don’t Give Up on the Challenge to the California Drug Statutes’ Divisibility” in the April 2015 link at the right.)
This overbreadth is now well accepted, but what’s still up in the air is whether these statutes are divisible. Under the presently controlling Ninth Circuit case of Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014), there has to be more than just a list of alternatives; there also has to be a requirement of jury unanimity on one of the alternatives. (For a prior post explaining Rendon, see “The Ninth Circuit Agrees With Us on What Divisibility Means Under Descamps,” in the October 2014 link at the right.) The Ninth Circuit has held the list of controlled substance alternatives in the California statutes satisfies this requirement, at least for now (see the discussion of this in the “Still More on Descamps: An Application of Last Week’s Post” and “Don’t Give Up on the Challenge to the California Drug Statutes’ Divisibility” posts), but hasn’t yet decided whether the sales/transportation/etc. list of alternatives satisfies this requirement. As noted in two of the prior posts (see the “Another Descamps Angle on a California Drug Statute” and “Don’t Give Up on the Challenge to the California Drug Statutes’ Divisibility” posts), there’s a strong argument that California doesn’t require jury unanimity about which of these forms of conduct the defendant engaged in, which would make those statutes non-divisible because of the overbroad conduct list even if the overbroad list of controlled substances doesn’t make them non-divisible.
The issue is pending in at least two Ninth Circuit cases right now, and an opinion issued in one of those cases suggests the court sees it as a serious issue. The opinion is United States v. Rosales-Aguilar, ___ F.3d ___, 2016 WL 1425877 (9th Cir. April 12, 2016). The court noted the Supreme Court recently granted certiorari in an Eighth Circuit case – United States v. Mathis, 786 F.3d 1068 (8th Cir. 2015) – to resolve a split in the circuits over whether the requirement of jury unanimity established by opinions like the Ninth Circuit’s opinion in Rendon v. Holder is the correct approach. (For a couple of posts making note of Mathis and its potential effect on Ninth Circuit precedent, see “More on Those Great New Categorical Approach Cases” in the February 2016 link at the right and “Another Great Categorical Approach/Divisibility Case” in the April 2016 link at the right.) The court then stated that “the petition for certiorari granted in Mathis is directly relevant to our resolution of Rosales’s challenge” and deferred resolution of the sentencing issue. Rosales-Aguilar, 2016 WL 1425877, at *7.
Mathis would only be relevant if the government would lose under the Rendon standard. While that doesn’t mean the court is going to rule in our favor for sure if Mathis upholds the Rendon standard, it at least suggests the court sees the sales/transportation/etc. divisibility argument as raising a serious issue.
So you should be preserving challenges to the use of convictions under the California sales/transportation/etc. drug statutes. We may win on the issue if Mathis goes our way, which is certainly a real possibility.